MASTER MAINTENANCE AND SUPPORT AGREEMENT
CONFIDENTIAL
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Master
Maintenance & Support Agreement (Kyocera Mita)
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CONFIDENTIAL
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This
Master Maintenance and Support Agreement (this “Agreement” or “MMSA”) is entered
into effective as of February 1, 2005 (the “Effective Date”), by and between
Kyocera Mita Corporation, a Japanese corporation, (“KYOCERA MITA”) and Peerless
Systems Corporation, a Delaware Corporation (“PEERLESS”). Each of KYOCERA MITA
and PEERLESS is sometimes referred to as a “Party” and jointly as
“Parties.”
This
MMSA
relates to Maintenance and Product Support Services to be provided with respect
to certain PEERLESS software and hardware products arising out of the Memorandum
of Understanding between the Parties effective as of February 1, 2005 (“MOU”)
and the Master Development Agreement between the Parties effective as of
February 1, 2005 , (“MDA”) and/or licensed to KYOCERA MITA under the Master
Technology License Agreement dated April 1, 1997, entered into between PEERLESS
and Kyocera Corporation, and transferred to KYOCERA MITA on April 1, 2002,
as
amended (“MTLA”) and the PS-LSAs thereto.
Maintenance
and Product Support Services are provided hereunder only for products owned
by
PEERLESS. No support or maintenance is provided hereunder for products owned
by
Adobe Systems Incorporated (“Adobe”), Novell, Inc. (“Novell”) or other third
party products. Maintenance and support with respect to any Adobe or Novell
or
other third party products are as set forth in the separate license agreements
covering such products.
Section
1 - Definitions
1.0 Definitions.
For the
purposes of this Agreement, all capitalized terms used in this Agreement shall
have the meaning specified herein or, if not defined herein, then the meaning
specified in the MOU, MDA, MTLA and/or applicable PS-LSA.
1.1 “Product
Failure”
means
any “bug,” error, unresolved problem or defect in a Supported Product or failure
by a Supported Product to conform or perform materially in accordance with
the
applicable Product Specifications, all of the foregoing that is reproducible
by
PEERLESS.
1.2 “Supported
Product”
means
the Deliverables, including without limitation any Peerless Licensed
Product.
Section
2 - Engineering Support
2.0 Engineering
Support .
[REDACTED].
2.1 Telephone
and E-Mail Support.
PEERLESS shall provide Maintenance and Product Support Services to address
Product Failures by telephone and e-mail to KYOCERA MITA during PEERLESS’ normal
working hours (0800 to 1700 Pacific Time - Time Zone ‘U’)). KYOCERA MITA shall
provide PEERLESS the name(s) of up to five (5) of its or its Affiliate’s
employee(s) that shall be the sole and exclusive employee(s) that may contact
PEERLESS with questions regarding the Supported Products (the “KMC
Representatives”). KYOCERA MITA, with reasonable prior notice to PEERLESS, may
replace any such KMC Representatives at its discretion.
2.2 Service
Obligations.
All
reports of Product Failures by KYOCERA MITA must be made to PEERLESS in writing
including via email. If KYOCERA MITA reports a Product Failure to PEERLESS,
PEERLESS shall promptly respond to such report and, subject to the terms and
conditions of this Agreement, shall promptly begin to attempt to remedy in
good
faith the Product Failure. The engineering support services set forth herein
shall be expressly contingent upon the following conditions:
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Master
Maintenance & Support Agreement (Kyocera Mita)
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CONFIDENTIAL
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(a) KYOCERA
MITA provides reasonable access to the Supported Products for which support
is
required, together with any software, hardware and materials which PEERLESS
does
not have and which are necessary for PEERLESS to reproduce a Product Failure
and
to test and evaluate any proposed resolution of the Product Failure, in
accordance with KYOCERA MITA’s reasonable security and confidentiality
procedures.
(b) KYOCERA
MITA has not exceeded the scope of the license for the Supported Products as
provided in the applicable PS-LSA.
2.4 Support
Location.
All
Maintenance and Product Support Services enumerated in this Agreement shall
be
provided from PEERLESS’ El Segundo, California facility unless the Parties
mutually agree in good faith that it is necessary to provide such services
at a
KYOCERA MITA Facility, in which case KYOCERA MITA shall reimburse PEERLESS
for
all reasonable travel, accommodation and living expenses approved in advance
in
writing by KYOCERA MITA.
2.5 Software
Releases.
If the
resolution of a KYOCERA MITA identified Product Failure is addressed by the
Maintenance and Product Support Services identified in Section 2.0 (and
more specifically the 2021 chargeable man hours provided therein) results in
the
creation of an Update Release, PEERLESS shall deliver to the KYOCERA MITA
Facility one (1) copy of each of the object code, Source Materials and related
documentation for each such Update Release for the Supported Product. Each
such
Update Release shall be licensed to KYOCERA MITA under the terms of the
applicable PS-LSA. In the event that such Update Release cannot be delivered
within the Maintenance and Product Support Services identified in Section 2.0
(specifically the 2021 chargeable man hours), then no such Update Release
delivery shall be required. It is agreed between the Parties that in such a
circumstance completion of such Update Release delivery maybe completed, under
KYOCERA MITA’s sole option, through the purchase of additional engineering
support hours.
2.6 Peerless
Response Times.
PEERLESS shall, within [REDACTED]
after
PEERLESS’ receipt of written notification by KYOCERA MITA of a Product Failure,
respond to KYOCERA MITA and provide either a schedule for resolution for that
KYOCERA MITA identified Product Failure or a date on which such a schedule
shall
be provided by PEERLESS. In the development of a schedule for the resolution
of
any KYOCERA MITA identified Product Failure, PEERLESS shall use planning
assumptions that reflect PEERLESS’ best efforts.
[REDACTED].
If
KYOCERA MITA desires PEERLESS to undertake such activities, KYOCERA MITA may,
at
its sole option, purchase additional engineering support hours required to
complete such activities.
Section
3 - Maintenance and Support Fees; Products Covered
3.0 Payment.
KYOCERA
MITA shall make all payments due hereunder in full, without any deduction or
set-off, within forty-five (45) calendar days of the date of PEERLESS’ invoice.
All payments made hereunder are non-refundable, non-transferable and
non-cancelable.
3.1 Supported
Products Covered.
This
MMSA shall cover each Supported Product upon acceptance of that Supported
Product as determined under the MDA and applicable Project Addendum thereto
or a
PS-LSA, as applicable.
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Master
Maintenance & Support Agreement (Kyocera Mita)
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CONFIDENTIAL
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Section
4 -Disclaimers, Limitations of Liability and Indemnity
4.0 Exclusions.
PEERLESS shall not have any obligation to provide Maintenance and Product
Support Services hereunder to any KYOCERA MITA Product that is not defined
in a
Project Addendum to the MDA or in an applicable LSA.
4.1 Disclaimer
of Warranties.
PEERLESS shall perform all Maintenance and Product Support Services under this
MMSA in a professional and workmanlike manner. EXCEPT AS PROVIDED IN THE FIRST
SENTENCE OF THIS SECTION 4.1, NEITHER PARTY MAKES ANY WARRANTIES UNDER THIS
MMSA. EXCEPT AS PROVIDED IN THE FIRST SENTENCE OF THIS SECTION 4.1, EACH PARTY
HEREBY DISCLAIMS ALL WARRANTIES UNDER THIS MMSA, WHETHER EXPRESS, IMPLIED,
OR
STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
4.2 Limitations
of Liability and Exclusion of Damages.
Each
party’s
liability under this Agreement shall be limited as set forth in Section 8 of
the
MDA (notwithstanding any expiration or termination of the MDA).
4.3 Indemnity
and Remedies.
Indemnity and remedies with respect to any Update Release or other materials
provided hereunder shall be as provided for Licensed Products under the MTLA
and
applicable PS-LSA.
Section
5 -Term, Renewal and Termination
5.0 Term.
The
initial term of this Agreement shall commence on the Effective Date of this
Agreement and shall remain in effect for the later of [REDACTED]
5.1 Termination.
KYOCERA
MITA may terminate this Agreement with respect to any or all of the Supported
Products at any time upon thirty (30) days written notice.
Section
6 - General
6.0 Ownership.
Notwithstanding anything contained in this Agreement to the contrary, ownership
of all intellectual property in connection with this MMSA is as set forth in
Section 7 of the MOU (notwithstanding any expiration or termination of the
MOU).
6.1 Proprietary
Rights Notices.
KYOCERA
MITA shall not remove, obscure or modify any PEERLESS copyright, trademark
or
confidentiality notices or marks.
6.2 Obligations
to Observe Confidentiality.
The
terms of the NDA shall govern each Party’s obligations to observe
confidentiality of the other Party’s Confidential Information.
6.3 Governing
Law.
This
Agreement shall be construed and enforced in accordance with the laws of the
United States of America and the State of California applicable to contracts
wholly executed and wholly to be performed therein, without giving effect to
the
conflict of law principles thereof. The parties agree that the International
Regimes, including but not limited to the United Nations Convention on Contracts
for the International Sale of Goods, and Supernational Regimes, including but
not limited to NAFTA, shall not apply to this Agreement.
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REQUESTED IS OMITTED AND IS NOTED WITH “[REDACTED].” AN UNREDACTED VERSION OF
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Master
Maintenance & Support Agreement (Kyocera Mita)
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CONFIDENTIAL
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6.4 Notices.
All
notices or other communications required hereunder shall be in writing and
delivered personally or sent by certified mail, return receipt requested, by
facsimile machine, or by a reputable courier service to the parties at the
addresses set forth below, or at such other addresses as shall be designated
in
writing from time to time by either party to the other in accordance with this
Section 6.4.
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All
notices to KYOCERA MITA shall be sent to:
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Kyocera
Mita Corporation
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Tel:
00-0-0000-0000
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Yohga
Office
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2-14-9
Tamagawadai
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FAX:
00-0-0000-0000
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Xxxxxxxx-xx
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Xxxxx
000-0000 Xxxxx
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Attention:
General Manager: RD Division 6
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All
notices to PEERLESS shall be sent to:
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Peerless
Systems Corporation
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Tel:
(000)000-0000
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0000
Xxxxxxxxx Xxxxxx
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FAX:
(000)000-0000
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El
Xxxxxxx, XX 00000 XXX
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FAX:
(000)000-0000
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Attention:
Vice President, Business Development
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Such
notice shall be effective: (i) on the fifth business day following deposit
thereof in the mail (via first class air mail), (ii) on the second business
day
following any such deposit for express delivery, (iii) on the next business
day
if delivered or via facsimile and (iv) upon receipt if delivered
personally.
6.5 Entire
Agreement.
This
Agreement, the MDA, the Project Addenda, the NDA, the MOU, the PS-LSAs, the
MTLA
(with respect to the PS-LSAs), and any third party software sublicense(s)
entered into between the Parties constitute the entire understanding and
agreement between PEERLESS and KYOCERA MITA with respect to the matters
contemplated herein and supersede any and all prior or contemporaneous oral
or
written communications with respect to the subject matter hereof, all of which
are merged herein. This Agreement shall not be modified, amended or in any
way
altered except by an instrument in writing signed by authorized representatives
of both PEERLESS and KYOCERA MITA. Except as specifically provided herein,
no
remedy available to either party hereunder or relating hereto shall be exclusive
of any other remedy, and each and every such remedy shall be cumulative and
shall be in addition to every other remedy given hereunder or now or hereafter
existing at law or in equity or by statute or otherwise. No waiver of any
provision of this Agreement or any rights or obligations of either party
hereunder shall be effective, except pursuant to a written instrument signed
by
the party or parties waiving compliance, and any such waiver shall be effective
only in the specific instance and for the specific purpose stated in such
writing.
6.6 Force
Majeure.
Except
for payment obligations, neither Party shall be responsible for delays nor
failures in performance hereunder to the extent that such party was hindered
in
its performance by any act of God, natural disasters, acts of war or terrorism,
riots, labor dispute, or any other occurrence beyond its reasonable
control.
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Maintenance & Support Agreement (Kyocera Mita)
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CONFIDENTIAL
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6.7 Severability.
If any
provision hereof is found invalid or unenforceable pursuant to judicial decree
or decision, the remainder of this Agreement shall remain valid and enforceable
according to its terms. Without limiting the foregoing, it is expressly
understood and agreed that each and every provision of this Agreement which
provides for a limitation of liability, disclaimer of warranties,
indemnification of a party or exclusion of damages or other remedies is intended
by the parties to be severable and independent of any other provision and to
be
enforced as such. Further, it is expressly understood and agreed that if any
remedy hereunder is determined to have failed of its essential purpose, all
limitations of liability and exclusions of damages or other remedies set forth
herein shall remain in effect.
6.8 Intentional
Risk Allocation. PEERLESS
and KYOCERA MITA each acknowledges that the provisions of the Agreement were
negotiated to reflect an informed voluntary allocation between them of all
the
risks, both known and unknown associated with the transactions associated with
this Agreement. The disclaimers and limitations in this Agreement are intended
to limit the circumstances of liability and the forms of relief
available.
6.9 Relationship
Between Parties.
Nothing
contained herein shall be deemed to create a joint venture or partnership or
agency relationship between PEERLESS and KYOCERA MITA. Neither party shall
have
the right or authority to, and each party shall not, assume or create any
obligation or responsibility, express or implied, on behalf of or in the name
of
the other party or bind the other party in any manner. Nothing set forth herein
shall be deemed to confer upon any person or entity other than the parties
hereto a right of action either under this Agreement or in any manner
whatsoever.
6.10 Currency.
All
payments required to be made hereunder shall be made in the lawful currency
of
the United States of America.
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Maintenance & Support Agreement (Kyocera Mita)
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CONFIDENTIAL
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The person signing this Agreement on behalf of a Party represents and warrants that he or she is authorized to sign on behalf of such Party. Each Party is signing only for itself and not for any subsidiary or Affiliate.
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KYOCERA
MITA CORPORATION
By:
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PEERLESS
SYSTEMS CORPORATION
By:
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/S/
Katsumi Komaguchi
(Authorized
Signature)
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/S/
Xxxxxxx X.
Roll
(Authorized
Signature)
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Name:
Katsumi Komaguchi
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Name:
Xxxxxxx X. Roll
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Title:
President
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Title:
President and CEO
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Date:
April 10, 2007
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Date:
April 17, 2007
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